Contract 2思维导图
Contract 2
树图思维导图提供 Contract 2 在线思维导图免费制作，点击“编辑”按钮，可对 Contract 2 进行在线思维导图编辑，本思维导图属于思维导图模板主题，文件编号是：27730dc2feba60d224d917f957182bf8
思维导图大纲
Contract 2思维导图模板大纲
privity of contract
CRTPA - Contract (Rights of Third Parties)Act 1999
not apply to employment or article of association
can expressly excluded
if applied, parties cannot change contract prejudicing third party rights without consent
agency
assignment
transfer of rights, not obligation. if both transferred, it is a novation
subrogation
insurance
guarantee - subrogate from creditor
collateral contract
between promisor and third party, along main contract. largely replaced by CRTPA
trust
trustor may enforce contract made by trustee with others
terms of contract
statement of fact
term-part of contract
representation-not part of contract, but induce the other party to enter into contract. (e.g. oral statement not contained in writing contract)
importance of the statement
at what stage in negotiation
whether party making statement had special knowledge. if yes, likely to be term. if no, likely to be representation
type1
conditions
warranties
innominate
time of the essence: if time agreed in commercial contract, general presumption it is of essence
type2
express terms
incorporation of terms
Parol Evidence Rule
general presumption that external evidence cannot add to written contract
exception: implied terms
entire agreement clause
cannot avoid liability for misrepresentation
implied terms
terms implied by statute
SGA-Sale of Goods Act 1979 apply to B2B (condition)
seller has title
match description
satisfactory quality: fit for purpose
fit for purpose
CRA-Consumer Rights Act 2015 apply to B2C (cannot be excluded)
reasonable care, skill, price, time
in line with information customer relies on
SAGA-Supply of Goods and Services Act 1982 apply to B2B (innominate)
reasonable time, care, skill- innominate terms
terms implied by court
to give business efficacy-terms implied in fact
"officious bystander" test: it goes without saying
standard: not only reasonable, but be necessary for contract to work
terms implied by custom and usage
terms implied from a course of dealings between parties
a regular and consistent course of dealings
incomplete agreement & vague terms
test: sufficient certainty
agreements to agree- to be agreed, contract not exist due to uncertainty
courts involvement
resolving uncertainty: there is a mechanism agreed by parties to resolve uncentainty
parties familiar with trade
future performance
has been partially performed
statutory assistance by implied terms
sever (remove) uncertain terms
test: whether can sever without affacting substance of bargin
exclusion clauses
requirement
construed so as to cover the breach that has arisen
not prohibited by statute
reasonable
incorporation
form
by signature
exception
misrepresentation
"non est factum" - party has no understanding of document. (very difficult)
by notice
before or at the time of contract was concluded
through custom or previous dealing
regular and consistent course of dealing
construction
contra proferentem rule: against party seeking to rely on exclusion clause
unfair contract term act 1977
only apply to B2B
void if death or personal injury caused by negligence
any other loss caused by negligence, unless reasonable
liability for breach implied condition as to title cannot be excluded
standard form terms, unless reasonable
limitation of liability
reasonable
using insurance to cover liability
whether reasonable to include the clause in contract (not whether reasonable to rely on it)
consumer rights act 2015
unfair term: contrary to good faith, significant imbalance
vitiating factors
void (rescinded)
mistake
common mistake: both made same mistake
mutual mistake: mistake about different things
unilateral mistake: one party mistake, the other is aware or should be aware.
note: not apply to quality
identity mistake: mistake as to identity of the other party. only if the identity is fundamental to decision to entry contract
illegality/breach of public policy
illegally formed
performed in illegal manner
voidable
duress (illegitimate pressure)
undue influence (equitable doctrine)
condition
conduct that does not go far enough be to categorised as duress
abuse of influence and relationship
affecting own free will
need not to be in bad faith or unlawful
need not to be the only factor
type
actual undue influence
presumed undue influence
third party undue influence
mispresentation
misrepresentation
tpye
fraudulent
test
knowingly
recklessly
without belief in its truth
negligent
innocent
statement of law or fact
no
statement of opinion
statement of future event
promise
yes
intention may be misrepresentation if knowing it was false
partial nondisclosure: "half truth", can be actionable misrepresentation
remedy
rescission
available for all three types. rescission is an equitable remedy, only can apply by court
bar to rescission
affrimation
lapse of time: delay defeats equity
impossible to restore
bona fide third party
indemnity
cover expense. it is very limited remedy
damages
fraudulent: based on tort of deceit, no need prove loss is reasonably foreseeable
negligence: same as fraudulent
innocent: damage not available but may award "damages in lieu of rescission" in court discretion
discharge
agreement
vary
with or without consideration
wavier
breach/ repudiate
actual breach
anticipatory breach
innocent party may immediately accept breach or wait until due time
frustration
law reform(frustration contracts)Act 1943
apportion loss between parties
pay for performed part or benefits obtained, otherwise refund
remedy
damages
remoteness
difference between contract (higher bar) and tort (lower bar)
causation
liquidated damages: if out of proportion, then maybe penalty clauses, which may be invalid
mitigation: take reasonable steps
defence: contributory negligence
indemnity and guarantee
indemnity: no need in wrting
guarantee: in writing, secondary obligation
debt claim
claiming the amount due under the contract rather than compensation for breach
debt claim is not a claim for damages
reliance interest
expense occured
equitable remedy
specific performance
breaching party to perform contract
injunction
require a party not breach contract
restitutionary
unjust enrichment
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